Supreme Court Math and Concealed Carry in Peruta v. California

Having lost its concealed carry appeal in the 9th circuit court of appeals, the National Rifle Association through its official state organization (the California Rifle and Pistol Association) has filed a cert petition with the United States Supreme Court asking for the court to decide its case and to reverse the decision of the 9th circuit en banc decision. That case is Peruta v. California (formerly Peruta v. San Diego).

Supreme Court rules require the vote of four justices to grant a cert petition and require a majority of justices to decide a case. Barring recusal or a vacancy, it currently takes five justices to win a case.

Inside the US Supreme Court (public domain photo)

Nearly two years ago I wrote an article in which I examined the decisions of the eleven judges assigned to the en banc panel in Peruta v. San Diego. Based on their past decisions I concluded that at least six of the judges would vote against Peruta. It turned out that seven judges voted against Peruta and, in the interest of full disclosure, I was wrong about two of the judges.

In my defense, Judge Silverman voting for Peruta was a surprise given his voting history before the Peruta decision and is still a surprise given his opposition to the Second Amendment after the Peruta decision.

But given that the four judges in the minority of the Peruta decision (including Judge Silverman) voted to destroy the Second Amendment Open Carry right which has always existed in favor of the non-existent right to concealed carry which has never existed, it shouldn’t be surprising after all.

I hope that the Peruta cert petition is granted. I don’t think that it will be but let’s assume that it is. Let us further assume that the justices will decide whether or not there is a right to carry a handgun in public and, if there is, whether or not states can ban Open Carry in favor of concealed carry.

In 2008, the US Supreme Court published its first in-depth decision regarding the Second Amendment, District of Columbia v. Heller. The Heller decision, written by the late Supreme Court Justice Antonin Scalia said that Open Carry is the right guaranteed by the Constitution. The decision also said that concealed carry is not a right.

Justices Breyer and Ginsburg will Vote against Peruta

The four justices in the minority wholeheartedly agreed with the majority that concealed carry is not a right. Given that they were in favor of upholding the ban on the mere possession of handguns in the home, this should come as no surprise.

Two of the Justices in the Heller decision minority who would have upheld the handgun ban in Heller, Breyer and Ginsburg, are still on the bench. If you think they have changed their minds I have a bridge to sell you.

Two years later, in another 5-4 decision (the McDonald decision), the court voted to apply the Second Amendment against all state and local governments. This time there was a new Justice Sotomayor voting with Justices Breyer and Ginsburg against applying the Second Amendment against the states. According to Justice Sotomayor, the right of the individual to keep and bear arms is something the Supreme Court invented in the Heller decision.

Justice Sotomayor will Vote against Peruta

I am fairly confident that Justice Sotomayor is going to join Justices Breyer and Ginsburg in holding that there is no right to carry a handgun, openly or concealed, in public. I am just as confident that, given the opportunity, Justices Sotomayor, Breyer and Ginsburg would vote to overturn the Heller and McDonald decisions.

For some unknown reason, Justice Kennedy is often bashed by the concealed carry proponents as the one keeping SCOTUS from granting a concealed carry cert petition.

Justices Thomas and Alito will Vote against Peruta

In other cases, Justices Alito and Thomas filed dissents which left no doubt that they do not think that concealed carry is a right. Justice Alito filed a lone dissent in a case involving sawed off shotguns in which he argued that their possession by a convicted felon was a violent crime because they could be concealed.

In another case, Justice Thomas had this to say in his dissent:

“The protections enumerated in the Second Amendment, no less than those enumerated in the First, are not absolute prohibitions against government regulation. Heller, 554 U. S., at 595, 626-627. Traditionally, States have imposed narrow limitations on an individual’s exercise of his right to keep and bear arms, such as prohibiting the carrying of weapons in a concealed manner or in sensitive locations, such as government buildings. Id., at 626-627; see, e.g., State v. Kerner, 181 N. C. 574, 578-579, 107 S. E. 222, 225 (1921). But these narrow restrictions neither prohibit nor broadly frustrate any individual from generally exercising his right to bear arms.”

Here is an excerpt from Justice Thomas’ citation to State v. Kerner:

“It is also but a reasonable regulation, and one which has been adopted in some of the states, to require that a pistol shall not be under a certain length, which, if reasonable, will prevent the use of pistols of small size, which are not borne as arms, but which are easily and ordinarily carried concealed. To exclude all pistols, however, is not a regulation, but a prohibition, of arms, which come under the designation of “arms” which the people are entitled to bear.”

State v. Kerner, 181 N.C. 574, 578 (N.C. 1921).

Justice Thomas clearly does not think that banning concealed carry violates the Second Amendment. Justice Alito’s dissent strongly suggests that he would go farther and uphold a ban on carrying concealable handguns, even if they were carried openly.

Justice Kagan, despite her newfound love of hunting, is likely to side with Justices Breyer, Ginsburg and Sotomayor in opposition to the Second Amendment. After all, hunters, as a group, are notorious for being in favor of anti-gun laws so long as the laws do not prevent them from hunting.

Justice Gorsuch has nothing in his record which hints which way he will vote.

This leaves Justice Kennedy and Chief Justice Roberts. Both of them were in the majority in the Heller and McDonald decisions but there is nothing in their record as Justices which would lead one to believe that after having signed off on the Heller and McDonald decisions that they would suddenly change their mind and discover a concealed carry right which they both said doesn’t exist, at least not under the Second Amendment.

And that is the fatal problem with the Peruta case. Peruta does not argue that there is a right to carry concealed under the 9th or 14th Amendments. Peruta claims that when all nine justices in the Heller decision said that there is not a concealed carry right under the Second Amendment, what they really said is that there is a right to carry concealed under the Second Amendment.

The Peruta lawyers have the hubris to cite this passage from the Heller decision and claim, in their cert petition, that the Supreme Court has already said that Open Carry can be banned in favor of concealed carry when SCOTUS said this:

“”Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

The Peruta lawyers have slapped the Supreme Court in the face, spit on Justice Scalia’s seminal decision on the Second Amendment, and now expect the Justices to grant their cert petition.

It takes the vote of four justices to grant a cert petition and five justices to prevail. A cert petition which involves only handguns faces an uphill battle. A cert petition which seeks concealed carry is DOA.

The Next Cert Petition Granted is Likely to be from an Open Carry Case

There are only two Open Carry cases which have any chance of landing in the Supreme Court’s inbox before this decade is over. The first is Dale Norman v. State of Florida. That case recently lost before the Florida Supreme Court leaving SCOTUS as its last chance. Mr. Norman’s lawyer still has not said whether or not he will be filing a cert petition. If you don’t file a cert petition then SCOTUS can’t grant the cert petition.

By the way, my California Open Carry lawsuit is not limited to handguns. My lawsuit challenges California’s Open Carry bans as well.

Long guns have always been counted as arms protected by the Second Amendment, even where the state courts have held that the Second Amendment is limited to defending against would be tyrants.

As my lawsuit does not seek to overturn a ban on a particular type of long gun or seek only to carry handguns, but seeks to carry handguns and long guns for the purpose of self-defense where others (notably hunters) can carry them in public, the court of appeals can’t tap dance its way around the Second Amendment Open Carry questions put before it.

And unlike the 9th circuit court of appeals en banc decision in Peruta which did not create a circuit split, were I to lose my appeal then my loss would create multiple circuit splits and splits with state high courts of last resort.

According to the Supreme Court justices, they rarely grant cert petitions to correct errors made by the lower courts, their primary purpose is to resolve circuit splits.

Charles Nichols is a proponent of open carry. In 2011, he filed a Federal Civil Rights lawsuit seeking to overturn California’s 1967 ban on openly carrying loaded firearms in public for the purpose of lawful self-defense. Oral argument in his case took place on February 15, 2018, before a three-judge panel of the 9th circuit court of appeals. Charles follows court cases relating to The Second Amendment and tells us what they really mean instead of what reporters, who have never read the decisions in the cases, say they mean.